Articles for category: Legality of Occupation III

The ICJ’s Treatment of Questions of Occupation in Gaza

The ICJ’s treatment of the state of occupation in Gaza is questionable. While it rightly accepted the functional approach to occupation, I doubt whether Israel was indeed capable of exercising its authority in Gaza sufficiently for its occupation to be found as having continued post-2005. The Court should have relied on Israel’s continued exercise of administrative authority vis-a-vis Gaza residents to find the existence of a state of occupation.

12. Oktober 2024

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The Functional Approach as Lex Lata

The ICJ has de facto adopted the functional approach to occupation with regard to Gaza. The Opinion is thus a critical point in the development of the law of occupation, in that it transcends a binary approach to the question of the existence of occupation, in favour of a more nuanced approach that enables holding that a territory is occupied, but not in an “all or nothing” way. More generally, the Opinion as rejects a more restrictive approach to the question of whether occupation exists in a territory or not in favour of a more flexible approach.

12. Oktober 2024

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